BASAYYA SHIVABASAYYA Vs. BASLINGAYYA CHANNAYYA

JUDGEMENT

(1.) This is an appeal against the decision in a second appeal by Mr. Justice Lokur arising out of a suit which was filed by a son to set aside an alienation made by his father. The plaintiff's father Channayya, defendant No. 3, and his two brothers, defendants Nos. 1 and 2, were the sons of one Shivbasayya, and Channayya was adopted into another family. After his adoption he made on July 29, 1918, a gift of certain property which he had inherited in his adopted family to defendants Nos. 1 and 2. Be had no son at the time: but his wife gave birth to the plaintiff on March 28, 1919. This suit was filed on March 11, 1940, within three years after the plaintiff attained the age of 18 years. Defendants Nos. 1 and 2 contended that the plaintiff had not been conceived on the date of the gift, that the suit was time-barred under Art. 126 of the first schedule to the Indian limitation Act, and that he could not claim the benefit of Section 6 or Section 8 of the Act. The Courts of facts found that the plaintiff had been conceived 280 days prior to his birth, that, therefore, he could challenge the gift made by his father, and that the suit was in time. The plaintiff accordingly was given a decree for possession.

(2.) On the finding of the first two Courts as to the time when the plaintiff was conceived, it must be deemed that he was in the womb of his mother on the date of the alienation which he impugned. The only two questions that were argued before Mr. Justice Lokur were (1) whether an alienation that can be impeached by a son actually bom at the time of the alienation can also be impeached by one who was in his mother's womb at that time, and (2) the question of limitation. On both these questions Mr. Justice Lokur found against the defendants, and dismissed the appeal.

(3.) There is no dispute before us as regards his first conclusion, which was based on examination of the authorities as well as the texts of Hindu law. It is unnecessary to refer to any part of such authorities or texts, except perhaps one which would be useful in connection with the second question. One of the texts relied on by Mr. Justice Lokur was a passage from the text of Gautama, relied upon by Vijnanesvara in commenting on a sentence in the Mitakshara, which has been thus translated: For the text of Gautama expresses let ownership of wealth be taken by birth, as the venerable teachers direct. His conclusion on this point is the same as stated by Mulla in his Hindu Law at Section 270 (p. 329, 10 edition), under the heading "rights of a son in his mother's womb." On the question of limitation the argument to be found in his judgment is this. The suit was admittedly governed by Art. 126 of the first schedule to the Indian Limitation Act, under which a suit by a Hindu governed by the law of Mitakshara to set aside his father's alienation of ancestral property must be instituted within 12 years from the date "when the alienee takes possession of the property." Normally, therefore, the period of limitation would expire in 1930. The plaintiff who filed the suit just before he reached the age of 21 years relied upon Section 6 of the Indian Limitation Act, the material part of which reads as follows:- Where a person entitled to institute a suit is, at the time from which the period of limitation is to be reckoned, a minor, he may institute the suit within the same period after the disability has ceased as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule.